Olorunoje Lateef Adewale -VS- Nigerian Customs Service Board

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE ELIZABETH A OJI PhD.

DATE: THURSDAY 12^TH DECEMBER 2019 SUIT NO: NICN/LA/101/2017

BETWEEN:

OLORUNOJE LATEEF ADEWALE – CLAIMANTS

AND

NIGERIAN CUSTOMS SERVICE BOARD – DEFENDANTS

Representation:

Audu Augustine appears for the claimant

No representation for the defendant

JUDGMENT

Introduction:

The claimant by a general form of complaint dated 3^rd March, 2017 instituted this action and sought for the following reliefs:

A DECLARATION that the claimant is entitled to be provided or furnished by the defendant with the Medical Report or Certificate warranting the retirement of the claimant on medical grounds from his employment in the Nigeria Customs Service on 20^th December, 2011, same being required by the Pension Funds Administrator to process the release of the funds standing to the credit of the claimant in his Retirement Savings Account.
A DECLARATION that the failure, refusal or negligence of the defendant to furnish the claimant with the Medical Report or Certificate warranting his Retirement on Medical Grounds from his employment in the Nigerian Customs Service to enable the claimant access his Retirement Savings Account with his Pension Funds Administrator is unlawful and wrongful.
AN ORDER of Court that the defendant shall forthwith furnish the claimant with the Medical Report or Certificate warranting the retirement of the claimant on Medical Grounds from his employment in the Nigerian Customs Service on the 20^th day of December, 2011 to enable the claimant access his Retirement Savings Account with his Pension Fund Administrator.

The defendant filed no process in defence of this action. The Court records show that defendant was served with the originating processes and hearing notices were served for every day the Court sat over this matter. Trial commenced on 1^st November 2018 and was concluded on the 28^th of January, 2019. The claimant testified himself and tendered nine exhibits marked exhibits C1 – C9. The Court adjourned for cross examination. The defendant was not present to cross-examine and the claimant closed his case. There was no defense at all by the defendant. The matter was then adjourned severally due to the Court being on national assignment. It was finally adjourned to 10^th December 2019 for adoption of final written addresses. The defendant did not file any address. The claimant’s final written address was adopted on the 10^th of December 2019 and the Court adjourned for judgment.

Facts of the Case:

The claimant was in the employment of the Nigeria Customs Service from 1^st August 1979 to 20^th December 2011. The claimant was due for retirement from the Service, by length of service on 1^st August, 2014, or by age on 6^th January, 2020. The claimant continued in the employment of the defendant and earned several promotions, such that by December 2011, he had risen from a Revenue Assistant to a Deputy Superintendent of Customs. During the course of his employment, a Retirement Savings Account (RSA) with the Personal Identification Number (PIN) 100060990718 was opened for him with Premium Pension Limited, pursuant to the Pension Reform Act, 2004. According to claimant, it was the practice of the Nigeria Customs Service to require its officers of the Service in the category to which the claimant belonged, to proceed on medical examination every three years for the purpose of determining the fitness of such persons for continuation in employment. Sometime in or around March 2011, the claimant proceeded for medical examination at General Hospital, Idi-Iroko, Ogun State as was directed and was issued with the Medical Certificate of Fitness dated 16 March, 2011 which indicated his fitness. However, the defendant served him with a letter of retirement on medical grounds despite his being declared fit by General Hospital, Idi-Iroko, Ogun State. The claimant sought redress for his dissatisfaction with the circumstances surrounding the termination of his employment by challenging same at the National Industrial Court which suit was eventually dismissed, inter alia on grounds of non-compliance with Section 2(a) of the Public Officers Protection Act. The claimant subsequently proceeded to take steps to access the benefits accrued to him in his Retirement Savings Account domiciled with Premium Pension Limited but was instructed by Premium Pension Limited to furnish them with medical condition warranting his retirement since his retirement was based on medical grounds. The claimant approached/wrote the defendant severally to produce the medical certificate upon which he was retired all to no avail till date.

Submissions of Counsel:

The defendant having failed to file any written address, after the time provided by the Rules, the claimant proceeded to file his final written address. In it, counsel, on behalf of claimant formulated three issues for determination, as follows:

Whether the claimant is entitled to medical certificate from his employer in fulfillment or in compliance with the conditions for accessing his pension from the pension fund administrator.
Whether the deliberate refusal by the defendant to issue the medical certificate to the claimant has denied him access to his contributory pension
Whether the claimant is entitled to the reliefs sought.

The claimant argued issues one and two together and submits that since claimant’s exit is on medical ground as shown in exhibit C4, the medical certificate is a condition precedent to accessing the benefits accrued to the claimant in his retirement savings account. He argues that the law has imposed a legal duty on the defendant which it is expected to perform in the discharge of its responsibility to the claimant.

On issue three, the claimant submits that since the defendant has not placed any evidence on the imaginary scale for the court to consider; the evidence placed before this court by the claimant remained unchallenged; thus the claimant has established his case entitling him to judgment.

Decision:

The defendant was afforded all opportunities to defend this case. Despite service of the processes and hearing notices and evidence attesting to the same, the defendant did not file any process nor was it represented at the trial by a Counsel.

I read carefully and considered the processes filed, the evidence led, the written submissions and authorities cited in the final address. I also heard the evidence of the lone witness called at the trial. In addition, I evaluated all the exhibits tendered and admitted. Having done all this, I set a lone issue down for determination:

Whether the claimant is entitled to his claim.

This lone issue is appropriate as it is trite that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both case law and statute support this proposition. See Chairman, EFCC & Anor. v. Littlechild & Anor (2015) LPELR-25199 (CA) & Section 131(1) & (2), Evidence Act, 2011. Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts. Also, by the principles in Oloruntoba-Oju v. Lawal (2001) FWLR(Pt. 72) 2029 at 2033 and Okomu Oil Palm vs. Iserhienrhien (2001) 5 NSCQR 802, where an employee complains that his employment has been wrongfully terminated, he has the onus to place before the court the terms of the employment and to prove in what manner the said terms were breached by the employer. The proof is expected to be by cogent, credible and admissible evidence and may either be oral or documentary; it may also be both.

The claimant by evidence showed that he was employed by the defendant via exhibit C1 – letter of appointment dated 1^st August 1979 and exhibit C2 official gazette of the Federal Republic of Nigeria of 9^th June 1983. He also showed that despite a certificate of fitness (exhibit C3) he was retired from service with effect from Monday 19^th December 2011. He had challenged the retirement in court but the suit was dismissed in NICN/LA/63/2014 for being statute-barred. Pursuant to that, he then proceeded to take steps to access the benefits accrued to him in his Retirement Savings Account. As his retirement was on medical grounds, he was required to furnish the PFA with the medical condition warranting the retirement. His uncontroverted evidence is that he requested the defendant to furnish him with a medical certificate. Exhibit C9 is the claimant’s solicitor’s letter requesting for the said medical certificate. That request has not been complied with till date.

Exhibit C6 shows claimant’s enrolment with the National Pension Commission. Also in evidence is claimant’s retirement savings account statement (exhibit C5) which shows that payments were made into his account. It shows a continuous remittance of both the employee and employer’s contributions and spans a period from February 2006 to April 2013. Having been retired by the defendant, it behoves the defendant to take all necessary actions to enable the claimant to access his pension contribution. As held by the Court of Appeal in the case of Martins and Others v. Kolawole (2011) LPELR-4475(CA):

Pension is a serious matter. It is designed to cushion the retiree from the hardship of life in retirement and to, also, serve as a reward for the retiree’s past meritorious service to the employer.

Pension is not merely a statutory right of the claimant but is also a fulfillment of a constitutional promise. Section 173 of the Constitution of the Federal Republic of Nigeria guarantees to every worker in the public service, the right to receive pension or gratuity as shall be regulated by law. It provides as follows:

Protection of pension rights

(1) Subject to the provisions of this Constitution, the right of a person in the public service of the Federation to receive pension or gratuity shall be regulated by law.

(2) Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section, shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the Code of Conduct.

The Courts have also recognized and declared the importance of pension. Thus in Momodu v. National Union of Local Government Employees 1994 8 NWLR it was held that:

A pension in the context of this case is an accrued right of an employee, be the right in money or other consideration, on retiring from the services of his employer and satisfying the conditions for payment of the said pension. It is a right which cannot be unilaterally taken away by the employer.

In evidence is the Premium Pension Limited Standard Notice of Retirement Form (exhibit C8). It has a column requesting information on reasons for retirement and has ‘medical’ as an option. It then requires, where the retirement is on medical ground, for the certificate. By virtue of exhibits C1 and C2, the claimant is clearly an employee in the public service of the Federation and as prescribed at Part 11 of the fifth schedule to the Constitution of the Federal Republic of Nigeria. Exhibit C7, claimant’s ‘Retiree Indemnity Form’, shows that his pension is regulated by the Pension Reform Act, 2004. Where a law creates a requirement for its fulfillment, it by necessary implication, creates a responsibility for its players to ensure that its provisions are not frustrated. It therefore becomes a statutory duty on the defendant to take such necessary steps as are required to enable the claimant take the benefits of his pension. It was the defendant that caused the claimant to be enrolled with the Pension Scheme; there is a duty on the defendant not to frustrate the basic objectives of that scheme.

The defendant retired the claimant via exhibit C4. Exhibit C4 states in part:

RETIREMENT FROM SERVICE

At its 41^st Regular Meeting held on the 19^th December, 2011, the Nigeria Customs Service Board (NCSB) approved that you be and you are hereby retired from Service on Medical Grounds with effect from Monday, 19^th December 2011.

The Board has further directed that I express its appreciation to you for the services you have rendered to the Nation over the years, and to wish you success in your future endeavours.

You are to hand over all Government property in your possession including (uniforms, accoutrements, identity card, et) to your immediate superior officer before you proceed on your retirement.

This letter clearly shows that the defendant retired the claimant on medical grounds. It did not show any condition that entitled the defendant to withhold the claimant’s pension on any ground. The Pension Fund Administrator requires proof of reasons for retirement before it can allow the claimant to access his pension in their custody. This creates an obligation on the defendant to issue a medical certificate confirming the basis for claimant’s obligation. To fail/refuse to do so makes it impossible for claimant to access his pension. This is contrary to the protection of pension rights provided in the constitution and the Pension Reform Act. According to the Court of Appeal in Kabo Air Ltd v. Mohammed (2014) LPELR-23614(CA) LPELR CA, per ABIRU JCA:

“…The learned authors of the Black’s Law Dictionary 5th Ed. defined a legal duty as “that which the law requires to be done or forborne to a determinate person or the public at large, correlative to a vested and coexistence right in such person or the public, and the breach of which constitutes negligence.”

I am convinced that the defendant owes it to the claimant to issue that medical certificate to enable the claimant to fulfil the pre-condition for accessing his pension. That is, in my opinion, the just thing to do. I therefore find that claimant’s case succeeds.

I here declare that the claimant is entitled to be provided or furnished by the defendant with the Medical Report or Certificate warranting his retirement on medical grounds from his employment in the Nigeria Customs Service on 20^th December, 2011, same being required by the Pension Funds Administrator to process the release of the funds standing to his credit in his Retirement Savings Account.

I here declare that the failure, refusal or negligence of the defendant to furnish the claimant with the Medical Report or Certificate warranting his retirement on medical grounds from his employment in the Nigerian Customs Service to enable him access his Retirement Savings Account with his Pension Funds Administrator is unlawful and wrongful.

I here order the defendant to forthwith furnish the claimant with the Medical Report or Certificate warranting the retirement of the claimant on Medical Grounds from his employment in the Nigerian Customs Service on the 20^th day of December, 2011 to enable the claimant access his Retirement Savings Account with his Pension Fund Administrator.